BARBARA CORDASCO et al. v. WILLIAM H. EDDY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3079-04T13079-04T1

BARBARA CORDASCO and ROCCO CORDASCO,

her husband,

Plaintiffs-Appellants,

v.

WILLIAM H. EDDY,

Defendant-Respondent.

________________________________

 

Argued March 7, 2006 - Decided March 20, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County,

L-2153-03.

Anthony Mazza argued the cause for appellant (Bendit Weinstock, attorneys; Mr. Mazza, on the brief).

James G. Gelenitis argued the cause for respondent (Soriano, Henkel, Biehl & Matthews, attorneys; Mr. Gelenitis, on the brief).

PER CURIAM

Plaintiff appeals from an order dismissing her complaint under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a).

The trial judge issued an oral opinion on January 20, 2005 granting defendant's motion for summary judgment. He concluded that plaintiff did not prove that she had permanent injuries and she did not satisfy the requirements of Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), by producing adequate proof to support her claim that the accident aggravated a pre-existing herniated disc in her neck. We affirm.

Plaintiff was involved in an automobile accident on March 24, 2001. She went to the emergency room complaining of pain in her left shoulder, arm and knee. On April 9, 2001 she went to an orthopedic surgeon, Dr. Boiardo, with complaints of neck pain and pain in her left shoulder, knee and foot. An MRI on April 12 showed mild soft tissue injury to the rotator cuff, but no tearing. A follow-up MRI of the shoulder, performed on June 20, 2001, was normal. An MRI of the left knee on April 12, 2001 showed no tearing of the meniscus or any other part of the knee; it did reveal "degenerative changes" in the posterior horn of the medial meniscus. A nerve conduction study performed almost two years after the accident, on January 9, 2003, was normal except for "mild" nerve root irritability at C-6, where plaintiff had a herniated disc that pre-existed the auto accident.

Based on this collection of essentially normal tests, Dr. Boiardo opined on January 28, 2003 that plaintiff suffered a "permanent disability." His report as to plaintiff's shoulder, however, was based on the first MRI that revealed "rotator cuff tendonopathy" and impingement, even though the second MRI was normal and specifically indicated no impingement and that the tendons were normal. Further, his report did not explain what "tendonopathy" is or why it constitutes a permanent injury. Although his report opined that the accident caused an exacerbation of plaintiff's pre-existing cervical herniated disc, an injury to her left knee, and an injury to her shoulder, the report did not attribute permanency to any specific injury. Instead the report merely recited in conclusory fashion that "[a]s a direct and causal result of this injury, in my opinion, this patient unfortunately will realize a permanent disability." This vague and general statement is insufficient to establish that plaintiff suffered an injury to a specific body part and that that body part will not heal to function normally even with treatment. N.J.S.A. 39:6A-8(a).

As further discussed below, Dr. Boiardo also did not indicate that he had reviewed or considered any records concerning plaintiff's admittedly pre-existing herniated disc to support his conclusion that the symptoms he observed were due to the accident and not to the pre-existing injury. Moreover, although plaintiff admitted in her deposition that she had previously injured the left knee some seven years earlier and that Dr. Boiardo had treated her for this injury, Dr. Boiardo's report makes no mention of the prior injury and does not explain how he concluded that her current knee problems were caused by the accident and not by the prior injury.

Three years after the accident, on March 19, 2004, plaintiff was examined by a second orthopedic surgeon, Dr. Tiger, who "did not review any imaging studies" but nonetheless opined that plaintiff had permanent injuries. Like Dr. Boiardo's report, Dr. Tiger's opinion relied on medical facts that objective testing revealed did not exist. His report referred to a tear in plaintiff's meniscus, although the MRI (which Dr. Tiger did not review) did not reveal a tear. He also referred to an "impingement syndrome" in her shoulder, although the most recent MRI (which he did not review) showed no impingement. Further, although he discussed possible treatments for her knee and shoulder, he did not opine that plaintiff's knee and shoulder would not heal to function normally even after these treatments. He also opined that plaintiff suffered from "chronic cervical strain syndrome with chronic myofascitis" without explaining this medical jargon or explaining why these conditions were either permanent or prevented normal body function.

We conclude that the opinions of both experts are insufficient to support a finding that plaintiff suffered permanent injuries to her knee or shoulder, because they are not supported by objective medical testing. In fact, they are contrary to the results of the objective tests, which showed no torn meniscus, torn rotator cuff or rotator cuff impingement.

We also conclude that both doctors' reports, that the accident aggravated plaintiff's pre-existing herniated disc, are net opinions. In this case, there is no dispute that plaintiff had a pre-existing serious and permanent injury to her neck. To satisfy AICRA, she must prove that the accident aggravated that pre-existing condition to the extent of producing a new, permanent injury. See N.J.S.A. 39:6A-8(a). It is not sufficient for an expert to state in conclusory fashion that an injury is permanent and that it was caused by the accident. To be useful to the trier of fact, the expert's report must explain the basis for those conclusions. See Creanga v. Jardal, 185 N.J. 345, 360 (2005).

Unless Drs. Boiardo and Tiger had personal knowledge of the extent of plaintiff's previous neck injury (for example if they had been her treating physicians for that injury) they could not provide a useful opinion concerning the nature and extent of the alleged aggravation without examining the prior medical records concerning plaintiff's pre-existing injury. And they certainly could not opine as to causation. We are aware that there is disagreement as to whether Polk remains viable after AICRA, and that the Supreme Court is currently considering this issue. Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, ___ N.J. ___, (2006) (slip op. at 1); Hardison v. King, 381 N.J. Super. 129 (App. Div. 2005). But we conclude that on this factual record, without the comparative review and analysis of medical records mandated by Polk, supra, the doctors' opinions as to causation and permanency are devoid of factual support and are therefore net opinions. See Creanga v. Jardal, supra, 185 N.J. at 360.

We also note the deficiencies in Dr. Boiardo's certification of permanency. The certification merely recites, in conclusory fashion, that plaintiff suffered permanent injuries in the accident, without explaining which body part or parts were permanently injured or why they will not heal to function normally even after treatment. See N.J.S.A. 39:6A-8(a). Further, the certification refers to his January 23, 2003 report, which also does not specify which body part was permanently injured.

Affirmed.

 

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A-3079-04T1

March 20, 2006